We recently came across a news story that inspired us to draft this post: A Wisconsin woman and a kangaroo enter a restaurant. (If that isn’t a great joke intro, we don’t know what is.) Another customer calls the police to report the animal, but the woman claims that her kangaroo is a service animal and produces a note from her doctor validating her assertion. The police ask her to leave, and she and baby Joey exit in anger. Even though in this scenario no action was taken, the issue remains far from moot. Because what qualifies as a service animal under the law – and how businesses can be best prepared in situations such as these – continues to be confusing and, thus, a popular area for discussion.

In 2010, the US Department of Justice published revised final regulations implementing Title III of the ADA (which applies to public accommodations and commercial facilities). Under this federal law, service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities. Examples of such work or tasks include guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person who is having a seizure, reminding a person with mental illness to take prescribed medications, calming a person with PTSD during an anxiety attack, or performing other duties. Service animals are working animals, not pets. The work or tasks a dog has been trained to provide must be directly related to the person’s disability. Dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA.

In addition to the provisions about service dogs, the Department’s revised ADA regulations have a separate provision about miniature horses. Entities covered by the ADA must modify their policies to permit miniature horses where reasonable. Specifically, a public entity or private business must allow a person with a disability to bring a miniature horse on the premises as long as it has been individually trained to do work or perform tasks for the benefit of the individual with a disability, and as long as the facility can accommodate the miniature horse’s type, size, and weight. As a practical matter, miniature horses that perform work or tasks for a person with a disability get the same treatment as canine service animals.

That said, some state and local laws define “service animal” more broadly than the ADA. In Wisconsin, for example, “service animal” means a “guide dog, signal dog, or other animal that is individually trained or is being trained to do work or perform tasks for the benefit of a person with a disability, including the work or task of guiding a person with impaired vision, alerting a person with impaired hearing to intruders or sound, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.” Wisc. Stat. §106.52(1)(fm).

So, while the only dogs and miniature horses must be accommodated as service animals under federal law, other types of animals may be service animals under state law if they are trained to perform work or tasks for an individual with a disability.

Back to our real life scenario: Is the baby Joey a service animal? According to the ADA, definitely not. But in Wisconsin, the answer is less obvious. If it could be proven that the kangaroo performs work or tasks for the woman, and that she has a disability, she may be able to successfully bring a claim for disability discrimination against the restaurant under state law.

To protect against lawsuits, businesses will do well to recognize the basic federal floor under the ADA, and review applicable state laws and local ordinances to make sure they don’t provide greater protections. In addition, state laws often protect service animals in training that are with their licensed trainers – who might not be persons with disabilities, serving as an important reminder that you cannot judge someone based on appearance.

To that end, when a person with a service animal enters a public facility or place of public accommodation, the person cannot be asked about the nature or extent of his disability. The ADA allows only two questions to be asked: Is the animal required because of a disability? AND What work or task has the animal been trained to perform?

These questions should not be asked, however, if the animal’s service tasks are obvious.

These questions elicit the key characteristics of a service animal: (1) It has been trained to assist a person with a disability; and (2) it performs work or tasks for a person with a disability. If the animal performs no work or tasks, it is not a service animal.

Kevin Fritz is an Associate in the Chicago office of Seyfarth Shaw LLP

Despite the url (www.adatitleiii.com) and frequent federal focus of this blog, it is important to remember that many states and municipalities have their own disability access laws and regulations with which businesses must comply. Although many state and local requirements are similar to the ADA, this is not always the case.

Usually we’re reporting on a peculiarity of California law, but not today. Effective November 22, 2014, businesses in New York must use the Accessible Icon (depicted above) in new construction and alterations. New York is the first state in the country to adopt this icon, which is distinctly different than the International Symbol of Access (“ISA”) specified in federal ADA Title III regulations.

The New “Accessible Icon”

Created over forty years ago, the ISA is a widely-recognized depiction of an individual in a wheelchair that signifies access for persons with disabilities. ADA design standards, as well as many state and local laws, regulations and building codes expressly require that businesses use the ISA to designate accessible entrances, restrooms, and parking spaces, to name a few.

On July 25, 2014, New York Governor Andrew Cuomo signed legislation designed to phase out the ISA throughout the state. Under the new law and its implementing regulations, accessibility signage installed or replaced on or after November 22, 2014 must use the Accessible Icon. The new law also prohibits the use of the term “handicapped” on accessible signage.

The description of the Accessible Icon in state regulations is taken verbatim from the website of The Accessible Icon Project, an advocacy organization that developed the icon and is lobbying for its adoption in the United States and abroad. Rather than what the regulations describe as a “static” position of the ISA, the Accessible Icon depicts a “dynamic character leaning forward and with a sense of movement.” The forward position of the head, arms pointing backward, and appearance of a wheelchair in motion “broadcast[] an important message that the emphasis should be on the person rather than the disability.”

The regulations make clear that their purpose is to change the accessibility symbol in the state, but make no reference to the fact that federal regulations – with which businesses must also comply – still require the traditional ISA.

New NYS Requirements Conflict with the ADA

New state signage requirements are inconsistent with the 2010 ADA Standards for Accessible Design (and the preceding 1991 Standards), which require that public accommodations use the ISA to designate certain accessible architectural features.

As a result, New York businesses that install or replace accessible signage on or after November 22, 2014 are faced with a Catch-22. They must either display the Accessible Icon and risk violating the ADA, or display the ISA instead and fail to comply with state law.

One way out of this quandary would be for New York businesses to display the Accessible Icon and rely on the equivalent facilitation provision in Section 103 of the 2010 ADA Standards, which allows “the use of designs, products, or technologies as alternatives to those prescribed, provided that they result in substantially equivalent or greater accessibility and usability.” Businesses can take the position that the Accessible Icon constitutes equivalent facilitation under Section 103, and thus its use in lieu of the ISA is permitted. However, the agency responsible for enforcing Title III of the ADA – – the Department of Justice (“DOJ”) – – has not issued any formal guidance on this issue. Moreover, if a lawsuit is filed under the ADA against a business that chose to display the Accessible Icon, the burden of proving that the Accessible Icon provides equivalent facilitation would be on the business.

A Sign of Things to Come?

Will other states follow New York’s lead and replace the ISA with the Accessible Icon? According to The Accessibility Project’s website, the Icon is displayed in municipal buildings in New York City, Cambridge, Massachusetts, and El Paso, Texas, as well as by a number of museums, restaurants, colleges, and hospitals in the United States and internationally. Additional state jurisdictions may well follow suit.

The symbolism underlying the design of the Accessible Icon is unquestionably positive. Its recent adoption in New York, however, has created uncertainty for public accommodations that must comply with both federal and state law.

Serial ADA Title III lawsuit filer Howard Cohan made local television news last week in a story CBS Action News 47 reportedafter Mr. Cohan filed 24 new lawsuits against various north Florida hotels. Seyfarth Shaw’s Title III Team has handled a number of cases filed by Mr. Cohan. Our search of the federal court docket shows that he has filed 606 lawsuits since the beginning of 2013.

Businesses often ask why the courts would allow a plaintiff with no apparent interest in doing business with the target of these lawsuits to pursue these matters. The reality is that challenging the legitimacy of these cases will almost always exceed the cost of settling the matter. As a result, most businesses choose the latter, seemingly more practical option, which simply encourages more lawsuits. On occasion, some businesses targeted by serial plaintiffs decide to fight and have obtained excellent results, as we reported here. However, these cases are the exception.

If you’ve visited a shopping mall in America, you’ve probably seen the characteristic design of the Hollister Co. clothing stores. About 249 of the stores have a roofed porch-like entrance, with steps leading up onto the porch from the mall area and steps leading down from the elevated porch into the store interior. Flanking the porch on both sides are wheelchair accessible entrances with no steps that lead directly into the store’s interior. Advocacy groups — with the Justice Department’s (DOJ) support as amicus — sued Hollister and parent company Abercrombie & Fitch Co. claiming that the porch structure violates Title III of the Americans with Disabilities Act.

The plaintiffs won in district court where they argued that: (1) even though the stores fully comply with the requirements of the 1991 and 2010 Standards for Accessible Design (ADA Standards) for entrances, the existence of an elevated porch violate the “overarching aims” of the Title III of the ADA because people who cannot use the stairs cannot enjoy it; (2) the porch itself is a “space” and all spaces must be accessible; and (3) the accessible entrance must be the one used by the “majority of people.”

The Tenth Circuit Court of Appeals rejected all of these arguments. The court found that meeting the ADA Standards is sufficient to satisfy Title III of the ADA when the issue is one of design, rather than discriminatory practice. The DOJ had argued — based on the ADA’s broad guarantee of a “full and equal” experience — that the porch has to be accessible because it is part of the “Hollister experience.” The Tenth Circuit disagreed. The court also held that the ADA Standards do not require every space in a facility to be accessible. Further, court ruled that the “majority of people” rule from the 1991 ADA Standards was abandoned in the 2010 ADA Standards so that it no longer applies to the case at hand.

This decision should be welcome news for public accommodations that are building and remodeling their facilities. Although it should be matter of common sense that compliance with the ADA Standards equals compliance with the ADA, this lawsuit called this proposition into question. Plaintiffs and DOJ often rely the “full and equal” language of the ADA to argue in support of additional obligations that are not stated in the regulations or ADA Standards. At least in matters of architectural design, one circuit is saying no to this line of argument.

Our own Minh Vu was interviewed for this article about the state of compliance with the new pool lift requirements at hotels and how serial plaintiffs have capitalized on the rules to file more lawsuits. Minh served as counsel to the American Hotel & Lodging Association in its successful effort to obtain a nine month extension of the pool lift compliance deadline after the Department of Justice decided to mandate — six weeks before the compliance deadline — that pool lifts must be fixed.

The Department of Justice recently issued a final rule increasing — due to inflation adjustment — the civil monetary penalties that a court can impose on a public accommodation in an enforcement action brought by the Attorney General under Title III of the ADA. The amounts of adjustments are determined according to a formula set forth in the Federal Civil Penalties Inflation Adjustment Act, the statute which provides for the regular evaluation of civil monetary penalties to ensure that they maintain their deterrent effect. Applying the formula to Title III, the adjustment increases the maximum civil penalty for a first violation from $55,000 to $75,000, and for a subsequent violation the maximum rose from $110,000 to $150,000. If you are wondering what constitutes a “violation” when, for example, there are multiple barriers at a particular facility, or multiple facilities are involved in a single enforcement action, Title III of the ADA states that “in determining whether a first or subsequent violation has occurred, a determination in a single action, by judgment or settlement, that the covered entity has engaged in more than one discriminatory act shall be counted as a single violation.”

The adjustments will start applying for violations that occur on or after April 28, 2014. With the monetary stakes now raised, businesses should be all the more vigilant to stay in compliance with all Title III requirements.

NBC Bay Area recently aired a report by Vicky Nguyen, Jeremy Carroll and Kevin Nious, analyzing federal lawsuits that alleged ADA violations, calling it “legalized extortion.” NBC Bay Area’s Investigative Team found from the more than 10,0000 ADA lawsuits it reviewed that had been filed in the five states with the highest disabled populations (California, Texas, New York, Pennsylvania and Florida) since 2005, that California has more lawsuits (7,188) for access violations than the other four states combined. Note that this does not include complaints filed in state courts alleging violations of the ADA or its state law equivalents. The report notes that unlike the ADA, California disability access laws are enforced through private lawsuits – since California allows up to $4,000 statutory damages per violation – and asks the question whether the suits are motivated by access or money. The report revealed that over 50% of California ADA lawsuits were filed by 30 plaintiffs. The report also interviewed a Certified Access Specialist, who demonstrated the difficulty businesses face in achieving full compliance with the requirements for physical accessibility, such as the proper measurements for a disabled parking space. The report concluded that, while not a guaranteed shield, having a Certified Access Specialist assess and provide an “Access Inspected” certificate can help deter drive-by plaintiffs from targeting a business for a lawsuit.

Now that we are all back in work mode, we thought it would be useful to take a quick look at some of the major ADA Title III trends and highlights of 2013 and how they will impact the coming year.

Digital Accessibility. We saw a definitive uptick in the number of issues relating to the accessibility of electronic information technology by individuals with disabilities. Individuals with sight disabilities complained that they could not access the websites of businesses, or that they had trouble using mobile applications that were not fully compatible with the screen readers provided on their mobile devices. The enforcement agencies in Massachusetts and New York took a keen interest in these issues, which resulted in some businesses agreeing to make their websites and mobile applications accessible to people with disabilities. Private litigants and advocacy groups were also successful in persuading businesses to voluntarily make their websites accessible.

The Department of Transportation (DOT) issued its final regulations under the Air Carrier Access Act, requiring airlines to make their websites accessible to people with disabilities by complying with Levels A and AA success criteria of the Web Content Accessibility Guidelines (WCAG) 2.0 within the next few years. The DOT’s adoption of this standard suggests to us that the Department of Justice (DOJ) will also propose this standard for the websites of public accommodations. When those proposed regulations will come out is still uncertain, but we predict it will be sometime in 2014.

Perhaps the most significant news in the area of website accessibility is that DOJ sought to intervene in a private class action brought against a public accommodation for not having an accessible website. While DOJ has always pressured businesses behind the scenes to make their websites accessible, this is the first enforcement suit of its kind, filed before DOJ has even issued proposed regulations defining what constitutes an accessible website. The proposed complaint cites to the WCAG 2.0 as a well-accepted industry guideline, further persuading us that the DOJ will in fact adopt this set of guidelines as its legal standard when it finally issues its proposed rule.

Businesses are taking note of the increased private and governmental enforcement activity relating to websites and digital accessibility more generally. We are seeing businesses be more proactive about this issue and trying to include accessibility in new websites, new web pages, and new contracts with partners that are involved with development of website content. This is a smart move, as digital accessibility will almost certainly continue to be a hot area in 2014.

Pool Lift Lawsuits Against Hotels. If you stayed at a hotel with a swimming pool or spa in 2013, you might have noticed that the swimming pool and/or spa had a crane-like device with a seat installed next to it. These devices are used by people with mobility disabilities to get in and out of a pool or spa. The DOJ’s 2010 ADA Title III regulations required these lifts to be installed in existing public accommodations facilities by January 31, 2013, unless doing so was not readily achievable. As we predicted, within several months after the deadline, plaintiffs’ attorneys began filing a flurry of lawsuits in Ohio and Indiana alleging that certain hotels did not have pool lifts, even though some actually did. We anticipate that more lawsuits of this type will be filed in 2014.

Point of Sale Device Class Actions. In the second half of 2013, a number of major retailers across the United States were hit with class actions filed in the Western District of Pennsylvania by a blind plaintiff alleging that he and other blind people are being denied access because they cannot use Point of Sale (POS) devices that do not have a tactile keypad for inputting personal identification numbers. Although the ADA Title III regulations do not specifically address POS devices and their accessibility to the blind, tactile keypads on POS devices have been required in California for several years. We will report on developments in these pending cases as they arise.

New California Accessibility Standards. Effective January 1, 2014, the 2013 California Building Code’s (“CBC”) requirements were substantially revised and reorganized to be more consistent with the federal 2010 ADA Standards for Accessible Design (“ADA 2010 Standards”). However, many substantial differences remain, so businesses in California should take care to comply with both the ADA 2010 Standards and CBC, or if the standards conflict, with the stricter – meaning that which provides greater access. Businesses should also remain mindful of the other California distinction – statutory damages of $1000-$4000 per violation – which makes vigilant compliance with the CBC and 2010 ADA Standards that much more important to California businesses.

New Mobile Apps that Rate the Accessibility of Businesses. In 2013, entrepreneurs with disabilities launched two new mobile applications — AbleRoad and AccessMap — that allow the public to rate and review how accessible business establishments are to people with disabilities. We reported on these applications and will continue monitoring to see how they develop and whether they will become a litigation research tool for serial plaintiffs and their lawyers.

Challenges in Renovations Due to Changes in the 2010 Standards. Effective March 15, 2012, all public accommodations and commercial facilities had to start complying with the 2010 ADA Standards in constructing new facilities and altering existing ones, subject to very limited exceptions. In 2013, we began seeing some of the challenges the new standards present as hotels renovate spaces that are compliant with the prior set of ADA Standards but must now be brought up to the 2010 ADA Standards because they are being altered. For example, the 2010 ADA Standards require different bathroom configurations in accessible guestrooms than the 1991 Standards and some hotels are finding it very difficult and/or expensive to make those bathrooms comply with the 2010 Standards. This issue will continue to be a problem in 2014 and for many years to come.

We thank you for your readership last year and look forward to bringing you more ADA Title III News and Insights in 2014.

On November 7, 2013, from 2:30 – 4:00 p.m. (ET), the U.S. Access Board will hold a webinar addressing accessible surfaces for playgrounds. The Access Board has developed accessibility guidelines (available at http://www.access-board.gov/guidelines-and-standards/recreation-facilities/guides) for newly constructed and altered play areas. During this webinar, Access Board staff and a representative from the National Center on Accessibility (NCA) will present results from a recently completed study on playground surfaces that assessed how well various types of surface systems, including engineered wood fiber, poured in place rubber, and rubber tiles, perform over time. For more information, including registration instructions, visit www.accessibilityonline.org.

Many individuals with disabilities are choosing other power-driven mobility devices (OPMDs) such as Segways™ over traditional wheelchairs and scooters to provide them with enhanced mobility. In response, as we previously reported, the Department of Justice (DOJ) amended its regulations in 2010 to require businesses to allow the use of OPMDs in their facilities unless the business can establish that the particular OPMD cannot be operated safely within any particular facility. Three years later, businesses still have very little practical guidance from the courts and DOJ about when they may limit the use of these devices.

The regulations specify that businesses must analyze five factors to determine whether they must allow a particular OPMD to be used in a specific facility, including (i) the type, size, weight, dimensions and speed of the device, (ii) the facility’s pedestrian traffic, (iii) the facility’s design and operational characteristics, (iv) whether legitimate safety requirements can be established to permit the safe operation of another OPMD in that facility, and (v) whether the use of that OPMD creates a substantial environmental harm or conflicts with federal land management laws. But there is little guidance on how to apply these factors to specific situations.

The DOJ’s position is that “in the vast majority of circumstances,” public accommodations would have to admit Segways™ and other OPMDs. In its technical guidance document, ADA Update, A Primer for Small Businesses, the DOJ encourages businesses to develop written policies based on these factors specifying when OPMDs will be permitted on their premises and to communicate those policies to the public. However, it does not give examples of scenarios in which OPMDs can be excluded, other than to say a business may be able to limit OPMD use at certain times of the day when a facility has a high volume of pedestrian traffic.

ABOUT SEYFARTH’S ADA TITLE III TEAM

Seyfarth’s ADA Title III team consists of attorneys with extensive experience in ADA Title III litigation located in many offices across the United States, including California where plaintiffs are most active. With additional litigators admitted to practice in virtually every jurisdiction in the country, we have the resources to defend our clients against lawsuits and investigations on a nationwide basis and provide consistent and efficient service in national engagements. We have successfully defended against or resolved hundreds of lawsuits brought under Title III of the ADA and applicable state laws.